Historically, judges have had very broad discretion when sentencing criminal defendants. The only guidance provided by the Eighth Amendment is that “excessive fines” and “cruel and unusual punishments” are prohibited. Broad judicial discretion has naturally led to criminal sentences across the country that vary significantly based on the subjective views of the judges. Legislators eventually began to step in and address this issue. Both state and federal sentencing reforms have led to sentencing laws that limit judicial discretion in criminal sentencing.
Statutory Sentencing Ranges
Depending upon the severity of the crime, sentences can range from unsupervised release to permanent incarceration or death. In most cases, permissible sentencing ranges are determined legislatively, and these ranges are found in both state and federal statutes. Most sentencing laws dictate parameters within which a defendant’s sentence must fall. This provides the sentencing judge with some discretion. Sentencing statutes can be classified into three categories: indeterminate, determinate, and presumptive.
In jurisdictions with indeterminate sentencing, the judge imposes a minimum and maximum term of incarceration, rather than a set number of years. The range imposed must fall within a broader statutory range determined by the legislature. Once the defendant has served the minimum time dictated by the judge, members of a parole board determine when the defendant will be released. A parole board can be made up of judges, physicians, criminologists and others qualified to assess whether a prisoner is appropriate for release. The board’s decision is based on the details of the crime, information from the prison and its interviews with the prisoner.
For example, under an indeterminate sentence law, a sentencing statute might impose a sentence ranging from one year to ten years in prison for, say, burglary. A judge might sentence a defendant convicted of burglary to a minimum of three and a maximum of seven years. On the defendant’s completion of three years, the parole board would hold a parole hearing and either approve or deny release at that time, citing reasons for its decision.
Prior to the parole board’s decision, the prisoner does have a right to be heard on the matter of release. However, defendants are entitled to few other rights during parole consideration. Some states don’t even guarantee defendants the right to be present at their own parole hearings, but rather allow them to be heard prior to the hearing. In some states, once parole is denied, there is no established right to additional parole hearings. Most states, however, do have rules allowing prisoners to apply for parole reconsideration following a denial. Some states allow prisoners to request reconsideration after one year, while other states require prisoners to wait several years before applying for parole reconsideration.
Indeterminate sentencing is the most prevalent form of criminal sentencing in the United States. As of 2019, 34 states employ indeterminate sentencing.
Determinate Sentencing Statutes
In some states that do not have indeterminate sentencing, determinate sentencing is used instead. Determinate sentencing jurisdictions still have statutory sentencing ranges for different types of offenses, but rather than selecting a minimum and maximum sentence within that range, the judge’s role is to select a specific number of years within the range. When returning to the burglary example, suppose the sentencing statute authorizes a sentence ranging from one to ten years in prison. With determinate sentencing, the judge might sentence a defendant to five years imprisonment after a burglary conviction.
In this paradigm, there is no set date for parole consideration. However, prisoners often have other opportunities to reduce the time they serve. Prisoners who refrain from breaking rules while incarcerated or who complete optional work or schooling programs may earn reduced sentences. This is referred to as “earned time” or “good time.” For example, in federal prison, an inmate can get up to 54 days per year erased from a sentence for good behavior. Determining what constitutes good behavior is typically left to the discretion of corrections officials.
Presumptive Sentencing Statutes
Some jurisdictions use presumptive sentencing. Under presumptive sentencing, it is the legislature, not the sentencing judge, that prescribes a precise sentence for each crime. Judicial discretion does still exist, but to impose a more severe sentence than the presumptive sentence, a judge must find aggravating factors. Similarly, to impose a more lenient sentence than the presumptive sentence, the judge must identify mitigating factors. For example, in a conspiracy case, a mitigating factor for one defendant might be that he was a minor player in the conspiracy, while an aggravating factor might be that he was the mastermind of the conspiracy. As such, a sentencing judge can lawfully give each of these defendants a different sentence for the same crime.
There are, though, constitutional limitations upon the kinds of information a judge may rely on to increase a defendant’s sentence beyond the statutory presumptive sentence. The Supreme Court has ruled that a sentencing judge cannot rely on facts that were not proven during trial to justify a decision to impose a sentence more severe than the presumptive sentence. Any aggravating information a judge uses must have been found to be true by the jury during the defendant’s trial. The Court explained that the Sixth Amendment right to trial by jury is violated when a judge increases a defendant’s sentence beyond the presumptive sentence based on facts not found by the jury. The only exception to this ruling involves the defendant’s prior convictions, as their existence can be used to justify an increased sentence.
Some jurisdictions further limit judicial discretion in sentencing by introducing mandatory minimums. These laws require the sentencing judge to impose a minimum prison sentence based solely upon the offense. Mandatory minimum sentencing laws began to emerge during the 1970’s at the federal level, and states began following suit thereafter. Consider multiple defendants who have been convicted of conspiring to commit robbery. Many states, though, include “safety valves” that allow judicial discretion to assign sentences lower than the minimums in certain cases. In 2018, Congress passed the First Step Act, which reduces mandatory minimums for nonviolent offenders.
In some jurisdictions, mandatory minimums laws apply mandatory sentences based upon factors other than just the offense itself. This has led to Sixth Amendment challenges, when these other factors are determined by a judge, rather than a jury. For example, in 2009, Allen Alleyne was involved in robbing a convenience store and was convicted of both robbery and of having a firearm during the crime. The latter offense included a mandatory minimum sentence of five years in prison, but if the defendant “brandished” the firearm during the crime, the minimum jumped to seven years.
The jury convicted Alleyne of carrying a firearm during the crime, but at sentencing, the judge ruled that Alleyne had brandished the firearm, and then imposed the seven-year sentence. Alleyne appealed, contending that his Sixth Amendment right to trial by jury guarantees that any factual determination that increases a sentence be made by a jury, not the sentencing judge. The Supreme Court agreed, ruling that the Sixth Amendment requires that any fact that increases a defendant’s punishment must be determined by a jury beyond a reasonable doubt.
Although mandatory minimum sentencing statutes remain widely in effect, they may not lawfully abridge protections provided by the Constitution, and so some such statutes have been amended to more clearly comply with the Sixth Amendment in the wake of the Supreme Court’s ruling in Alleyne.
“Three strikes” statutes involve another type of mandatory minimum sentencing. These laws apply to certain felonies and impose mandatory minimum sentences on defendants convicted for the third time of those offenses. Three strikes laws impose a very harsh sentence on this third conviction. Three strikes statutes vary as to what types of offenses count toward the three strikes. Statutes that include only violent felony offenses in their three strikes calculations are common and not particularly controversial. However, some jurisdictions have three strikes rules that allow even minor or nonviolent felony offenses to constitute the third strike. These, in effect, can send a defendant to a lengthy prison sentence for a relatively minor offense. This system has been highly criticized by criminal justice reform advocates, and in recent years several states have stepped back from such hard line three strikes laws.
While three strikes laws are lawful generally, their outcomes, on rare occasions, have been ruled unconstitutional. For example, in the 1983 case of Solem v. Helm, the defendant Jerry Helm was subject to a “seven” strikes law, his seventh offense triggering a mandatory sentence of life imprisonment without the possibility of parole. As it happens, his seventh offense was writing a bad check for $100. Helm appealed, and the Supreme Court ruled that the sentence was so disproportionate to the offense charged, that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
In contrast, however, in the 2003 case, Lockyer v. Andrade, defendant Leandro Andrade’s third strike involved stealing $150 worth of video tapes from K-mart. He was sentenced to 50 years in prison. On appeal, the Supreme Court did not find that his sentence amounted to cruel and unusual punishment.
There is no clearly defined analysis to determine whether the application of a three strikes law will be ruled unconstitutional. The Supreme Court itself has written that its own Eighth Amendment jurisprudence “lacks clarity.” As a result, criminal justice reform advocates have begun focusing on lobbying legislators to change three strikes laws rather than depending on the judiciary to effectively address their lawfulness.
The Federal Sentencing Guidelines
Most of the lawmaking which defines the behaviors constituting criminal offenses falls within the purview of state legislators. As such, different states are free to criminalize different behaviors, or to criminalize the same behaviors, but do so using different languages to describe the prohibited acts. For example, states legislate differently whether their youth can purchase, possess or “consume” alcoholic beverages, and states differ as to at what ages these behaviors become legal. Similarly, one state may make a crime a misdemeanor, while another state may make the same behavior a felony. So, it is not inherently surprising that sentences for similarly-named state crimes vary from state to state.
Conversely, federal criminal law applies uniformly to everyone across the United States, and thus, it would be expected that sentences across the country for the same federal offenses would typically be consistent. However, a widespread lack of such consistency was observed by criminal justice researchers during the 1970’s. As a result, Congress enacted sentencing reforms in 1984 that led to the creation of Federal Sentencing Guidelines, which were formally adopted in 1987. The guidelines aimed to alleviate the sentencing disparities, and they apply to federal felonies and Class A misdemeanors. They provide federal judges with step-by-step instructions when imposing sentences in federal cases. The first step involves determining the seriousness of a defendant’s offense. The second involves weighing other offense characteristics and the third considers the defendant’s criminal history.
To determine the seriousness of a given offense, the guidelines assign to each federal offense a base level from 1 to 43, with the highest levels being the most serious offenses. Once an offense’s level is identified, the facts of the defendant’s case are analyzed to determine whether any characteristics of the case call for the case to be reassigned to either a higher or lower sentencing level.
For example, robbery’s base offense level is 20. But if a dangerous weapon was used, 4 levels are added, for an offense level of 24. If that weapon was a firearm, another level is added and, if discharged, add 2 more levels. The offense level can also rise based on other factors, such as the amount stolen, the purpose of the robbery and whether the offense was a carjacking. The differences between levels can be severe. A base offense level of 20 with no criminal history carries a maximum prison term of 41 months, while carjacking while possessing a gun would be a level 26, almost doubling the maximum prison term to 78 months.
On the other hand, the level of an offense can be decreased if the defendant was only a minor participant in the crime. There can also be adjustments to the offense level known as “acceptance of responsibility adjustments.” For example, if a defendant convicted of theft voluntarily paid restitution to the victim even before his conviction, the sentencing judge may consider that, and lower the theft’s offense level for purposes of sentencing.
Next, the sentencing judge must examine the defendant’s criminal history as outlined in the sentencing guidelines. The guidelines set forth six criminal history categories, with the sixth category including defendants with the lengthiest and most severe criminal histories. Category one, on the other hand, includes first-time offenders and those with minor criminal histories.
The guidelines then provide a table that lists the six criminal history categories across the top, and the 43 offense levels vertically along the side. The table’s fields include ranges of imprisonment, from zero to six months at the low end, to life in prison (with no possibility of parole) at the high end. The field at which a defendant’s offense level intersects with his criminal history category provides the sentencing range available to the judge presiding over the case. While the guidelines were originally intended to be binding upon federal judges, that mandate was later removed by the Supreme Court. Thus, even after arriving at the range provided by the guidelines, a judge may still depart from that range. Thus, federal sentencing judges may deviate from the guidelines based on the circumstances in a given case when justice so requires.
In our next module, we will cover the right to appeal a criminal conviction or sentence, as well as other available forms of post-conviction relief.
 U.S. Const. Amend. 8.
 See, Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 11 (1979).
 See, Alexis Watts, Parole Release Reconsideration in States with DiscretionaryRelease (2017)
 See, Edward Rhine, Parole Boards within Indeterminate and Determinate Sentencing Structures (2018)
 See, 18 U.S.C.S. § 3624 (b).
 See, Blakely v. Washington, 542 U.S. 296 (2004).
 See, e.g., 21 U.S.C. 13 § 841.
 See, Recent State-Level Reforms to Mandatory Minimums Laws (2017), https://famm.org/wp-content/uploads/Recent-State-Reforms.pdf
 See, 115 P.L. 391, 132 Stat. 5194, 2018 Enacted S. 756, 115 Enacted S.756.
 See, Alleyne v. United States, 570 U.S. 99 (2013).
 See, e.g., Matthew Albright, Senate PassesChanges to ‘Three-Strikes’ Sentencing Law (2016)
 See, Solem v. Helm, 463 U.S. 277 (1983).
 See, Lockyer v. Andrade, 538 U.S. 63 (2003).
 See, State Guide to Drinking Age Law
 See, S. 1762, 98 Stat. 1976, enacted October 12, 1984.
 See Federal Sentencing Guidelines Manual (U.S. Sentencing Comm’n)
 See, U.S. v. Booker, 543 U.S. 220 (2005).